United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
Report and Recommendation is made to the Honorable Robert C.
Jones, United States District Judge. The action was referred
to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) and LR IB 1-4. Before the court is
Kenneth Erickson's ("plaintiff') application to
proceed in forma pauperis (ECF No. 13) and pro
se complaint (ECF No. 16). Having reviewed the record,
the court recommends that plaintiffs application to proceed
in forma pauperis be granted, and that the complaint
be dismissed with prejudice.
IN FORMA PA UPERIS APPLICATION
forth in 28 U.S.C. § 1915(a), the court may authorize a
plaintiff to proceed in forma pauperis if he or she
is unable to pay the prescribed court fees. Based on the
financial information in the record, the court finds that
plaintiff is unable to pay the filing fee in this matter.
Accordingly, the court recommends that plaintiffs application
to proceed in forma pauperis be granted.
to proceed in forma pauperis are governed by 28
U.S.C. § 1915. Section 1915 provides, in relevant part,
that "the court shall dismiss the case at any time if
the court determines that... the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim upon
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief." 28
U.S.C. § 1915(e)(2)(B). Dismissal of a complaint for
failure to state a claim upon which relief may be granted is
provided for in Federal Rule of Civil Procedure 12(b)(6), and
the court applies the same standard under section 1915 when
reviewing the adequacy of a complaint or amended complaint.
See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.
Rule 12(b)(6), the court must dismiss the complaint if it
fails to "state a claim for relief that is plausible on
its face." BellAtl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). Courts accept as true all well-pled factual
allegations, set aside legal conclusions, and verify that the
factual allegations state a plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Although the complaint need not contain detailed factual
allegations, it must offer more than "a formulaic
recitation of the elements of a cause of action" and
"raise a right to relief above a speculative
level." Twombly, 550 U.S. at 555.
complaint is construed in a light most favorable to the
plaintiff. Chubb Custom Ins. Co. v. Space Systems/Loral
Inc., 710 F.3d 946, 956 (9th Cir. 2013). The court takes
particular care when reviewing the pleadings of a pro
se party, for a more forgiving standard applies to
litigants not represented by counsel. Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010). If dismissal
is appropriate, the pro se plaintiff should be given
leave to amend the complaint, and some notice of its
deficiencies, unless it is clear that those deficiencies
cannot be cured. Cato v. United States, 70 F.3d
1103, 1107 (9th Cir. 1995).
brings this action pursuant to 42 U.S.C. § 1983, against
Laura Erickson, Justice Erickson, Don Milham, Jodie Barker,
and Brittney Nicole Barker. (ECF No. 1-1 at 1-2.). Plaintiffs
largely incomprehensible narrative makes it impossible for
the court to identify the factual or legal bases for his
claims or the nature of his requested relief.
Rule of Civil Procedure 8(a)(2) requires that a complaint
contain "a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to
give the defendant fair notice of what the... claim is and
the grounds upon which it rests." Twombly, 550
U.S. at 555 (quotation and alteration omitted). It must also
include "a demand for the relief sought ___"
Fed.R.Civ.P. 8(a)(3). Here, plaintiffs complaint is rambling
and nonsensical. Plaintiff repeatedly states that he owns an
account with three million dollars, and claims that
defendants used an unspecified device to harm plaintiff and
blur his memory. (ECF No. 16 at 1, 3, 9.) Despite plaintiffs
vague references to the Constitution, the gravamen of his
claim remains unclear. Dismissal on those grounds alone is
appropriate. Plaintiff states no claim upon which relief may
be granted, and given the unintelligible nature of the
allegations, amendment would be futile. See Cato, 70
F.3d at 1106. Therefore, it is recommended that the action be
dismissed with prejudice.
with die foregoing, the court finds that dismissal is
warranted under 28 U.S.C. 1915(e)(2)(B)(ii). Because
amendment would be futile, the dismissal should be with
prejudice. See Cato, 70 F.3d at 1106.
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of
the Local Rules of Practice, the parties may file specific
written objections to this Report and Recommendation within
fourteen days of receipt. These objections should be entitled
"Objections to Magistrate Judge's Report and
Recommendation" and should be accompanied by points and
authorities for consideration by the District Court.
Report and Recommendation is not an appealable order and any
notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should
not be filed ...